Court of Appeal for Ontario

Citation: R. v. Kuneman, 2010 ONCA 842

Date: 2010-12-09

Docket: C51439

Between:

Her Majesty the Queen Respondent

and

Narcisse Kuneman Appellant

Before: Laskin, Armstrong and LaForme JJ.A.

Counsel: Timothy E. Breen, for the appellant Alexander Alvaro, for the respondent

Heard and released orally: December 2, 2010

On appeal from the sentence imposed on January 27, 2006 by Justice Norman Glaude of the Superior Court of Justice.

ENDORSEMENT

[1] The appellant appeals the long term supervision order imposed by the sentencing judge. On the basis of the Supreme Court of Canada’s decision in R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, both sides agree that the long term offender designation can stand only if the appellant was found to meet the statutory criteria for a dangerous offender. However, the trial judge found that the appellant was not a dangerous offender. Therefore, the appellant says that the long term supervision order must be set aside. The Crown responds by saying that the sentencing judge’s finding that the appellant is not a dangerous offender is an unreasonable finding.

[2] We do not agree with the Crown’s position. At the sentencing hearing, the Crown relied on the report of Dr. Woodside. That report, and indeed Dr. Woodside’s opinion, supported the trial judge’s finding. Admittedly, Dr. Woodside’s opinion was based largely on the actuarial evidence of risk, especially on the results of the Static-99 test.

[3] However, at the sentencing hearing, the Crown did not challenge the reliability of this evidence. And thus, on the record, and on the arguments before him, the trial judge was entitled to rely heavily on Dr. Woodside’s opinion. Accordingly, the trial judge’s finding that the appellant is not a dangerous offender is reasonably supported by the evidence. It follows that the long term offender designation cannot stand.

[4] We allow the appeal and set aside the long term offender designation. The appellant has now served his five months determinate sentence and four-and-a-half years of the long term supervision order. We therefore vary his determinate sentence to time served, and in place of the long term supervision order, we impose probation for three years on terms to be agreed by counsel and approved by the court.

“John Laskin J.A.”

“Robert P. Armstrong J.A.

“H.S. LaForme J.A.”